Shri Bimal Jitendrabhai Mehta, Bhavnagar V. ACIT, Circle-2, Bhavnagar

ITA 2127/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1471 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Assessee Lawyers: M J SHAH
• Keywords: Assessment record; Set aside
• Section: 250

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO.2127/AHD/2018 / ASSTT. YEAR: 2011-12 SHRI BIMAL JITENDRABHAI MEHTA TROPICAL LAGOON TOWER NO.4, FLAT NO.1502 G.B. ROAD, ANANDNAGAR KEVESAR THANE (WEST)-400 615 MAHARASHTRA PAN : AATPM 1782 E VS. ACIT,CIR.2 BHAVNAGAR. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M.J. SHAH, AR REVENUE BY : SHRI VIRENDRA OJHA, CIT-DR ! / DATE OF HEARING : 24/06/2021 '#$ ! / DATE OF PRONOUNCEMENT: 5/07/2021 %& / O R D E R PER RAJPAL YADAV, VICE-PRESIDENT ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST EX PARTE ORDER OF THE LD.CIT(A)-6, AHMEDABAD DATED 16.08.201 8 PASSED FOR THE ASSTT.YEAR 2011-12. 2. ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE EXPARTE FOR WANT OF PROSECUTION. ITA NO.2127/AHD/2018 2 3. WE SHORTLY TAKE FACTS OF THE CASE OF THE ASSESSE E, AS EMERGING FROM THE RELEVANT ORDERS OF THE REVENUE AU THORITIES. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN INVESTMENT AND TRADING IN SHARES AND SECURITIES. HE FILED HIS RETURN OF INC OME ON 21.10.2011 DECLARING A LOSS OF RS.(-)28,22,054/-. IN AN ASSESSMENT MADE UNDER SECTION 143(3), THE LD.AO MAD E VARIOUS ADDITIONS TO THE DECLARED INCOME. THIS ORDER OF T HE AO WAS CHALLENGED BEFORE THE FIRST APPELLATE AUTHORITY. T HE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE ON THE GROUND OF NON-PROSECUTION AT THE END OF THE ASSESSEE. THE AS SESSEE IS NOW IMPUGNING THIS ORDER OF THE LD.CIT(A) BEFORE THE TR IBUNAL. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. A PERUSAL OF THE CIT (A)S ORDER WOULD INDICATE THAT THE LD.CIT(A) HAS ISSUED NOTICE TO THE ASSESSEE FOR ARGUING THE APPEAL ON FIVE OCCASIONS, BUT ON EA CH OCCASION NO ONE HAD APPEARED, AND ACCORDINGLY, THE LD.CIT(A) AF TER PUTTING RELIANCE UPON VARIOUS DECISIONS OF HONBLE SUPREME COURT AND VARIOUS HIGH COURTS, INCLUDING THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CHEMIPOL VS. UNION OF IND IA (CENTRAL EXCISE APPEAL NO.62 OF 2009) TO THE PROPOSITION THA T EVERY JUDICIAL AND QUASI-JUDICIAL AUTHORITY IS ENTITLED TO DISMISS THE CASE BEFORE HIM ON ACCOUNT OF WANT OF PROSECUTION. IN THIS CONN ECTION, IT IS PERTINENT TO TAKE NOTE OF SUB-SECTION (6) OF SECTIO N 250 OF THE INCOME TAX ACT, 1961 WHICH READS AS UNDER: 6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSI NG OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POIN TS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. ITA NO.2127/AHD/2018 3 5. ON PERUSAL OF SECTION WOULD INDICATE THAT THE LD .CIT(A) WAS REQUIRED TO FORMULATE POINTS IN DISPUTE, AND THEREA FTER RECORD REASONS ON SUCH POINTS. NO DOUBT THE LD.CIT(A) HAS GIVEN NUMBER OF OPPORTUNITIES TO THE ASSESSEE TO ATTEND THE HEAR ING, BUT THE ASSESSEE DID NOT AVAIL AND REMAINED ABSENT, WHICH IPSO FACTO WOULD NOT EMPOWER THE LD.CIT(A) TO PASS AN EX PARTE ORDER WITHOUT GOING TO THE MERIT OF THE CASES AND WITHOUT MAKING A SPEAKING ORDER, BECAUSE, RATIONALE FOR PASSING A SP EAKING ORDER BASED ON THE MATERIAL AVAILABLE ON RECORD IS THAT, SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL, AND SUCH ORDER WOULD ENA BLE NOT ONLY THE LITIGANTS AND THE APPELLATE AUTHORITY TO KNOW T HE EXACT POINT OF DISPUTE FOR ADJUDICATION. IN THE INSTANT CASE, EVEN IF THE ASSESSEE DID NOT PARTICIPATE, THE LD.CIT(A) OUGHT TO HAVE GO NE THROUGH THE ASSESSMENT RECORD AND THEREAFTER FORMED THE POINT I N DISPUTE, AND SHOULD HAVE RECORDED REASONS IN SUPPORT OF HIS CONC LUSIONS ON THOSE POINTS. THE LD.CIT(A) FAILED TO ADHERE THE M ANDATORY PROCEDURE, HENCE HIS ORDER IS NOT SUSTAINABLE. WE ALLOW THIS APPEAL OF THE ASSESSEE AND SET ASIDE THE IMPUGNED O RDER OF THE LD.CIT(A) FOR FRESH ADJUDICATION. NEEDLESS TO MENTI ON HERE, THE ASSESSEE SHALL COOPERATE IN THE SET ASIDE APPELLATE PROCEEDING, AND WOULD NOT INDULGE IN UNNECESSARY DELAY TACTICS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 5 TH JULY, 2021. SD/- SD/- (WASEEM AHMED) ACCOUNTANT MEMBER (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 05/07/2021